Esu 11 sped inservice

Legal Issues Every Special Educator Should Know Karen Haase Harding & Shultz (402) 434-3000

khaase@hslegalfirm.com H & S School Law @KarenHaase

The Plan for Today  Seclusion and Restraint  Extracurricular activities  Transportation

Seclusion and Restraint Litigation

Clark v. Special Sch. Dist.

(E.D. Mo. 2012)  Student OHI: ADHD, seizure disorder, “autistic-like behaviors”  Kindergarten year • Suspended three times • Lasted 2 months in parochial school • No meds for ADHD • Final IEP had three goals, all behavioral

Clark v. Special Sch. Dist.

(E.D. Mo. 2012)  First grade year • Started school 8/14 • Transferred to parochial school 8/24; re-enrolled in public school 9/19 • 2:1, still disruptive 50% of time • Shortened school day implemented • Transferred to special day school • Special school used SORs • Mom called CPS

Clark v. Special Sch. Dist.

(E.D. Mo. 2012)  Second grade year • Parents refused to send to school unless IEP prohibited use of SOR • Educators on team resisted • Third party consultant retained • IEP team eventually homebound • Served at public library with some success • Mom sued during second semester

Clark v. Special Sch. Dist.

(E.D. Mo. 2012)  Mom’s Claims • Use of SOR deprived student of FAPE • SOR = seclusion and restraint • No FBA or BIP • Student not served in LRE  Court • SOR didn’t deprive of FAPE • Seclusion not unlawful • FBA and BIP can be in IEP • Restrictive placement appropriate

Lessons from Clark  Documentation pays off • Chemical restraint – made a record of refusal • In and out of parochial school • Parent statements recorded in IEP  Follow policy on seclusion to the letter  FBA and BIP can be in IEP  Move through continuum of placements  Use homebound to buy time

C.N. v. Wilmar Pub. Sch. (8th Cir. 2010)  Third grader with a communication disorder and ADHD  IEP called for • “thinking desk” • use of restraint techniques and seclusion room  IEP adopted some (but not all) suggestions of third party expert

C.N. v. Wilmar Pub. Sch. (8th Cir. 2010)  Para reported teacher to department of ed. for abuse • Alleged that teacher yelled at student • Described teacher’s use of aversives • Investigation found teacher wrong re treatment of others, but not CN  Parent sued alleged these were unlawful “seizures” because teacher overused

C.N. v. Wilmar Pub. Sch. (8th Cir. 2010) Held: School wins  IEP team considered input from third party expert -- not required to adopt all  Teacher’s practices don’t substantially depart from accepted practices in the field  Especially when in IEP  Kid had transferred, so FAPE claim filed against wrong district

Lessons from C.N.  Make sure to consider input from third parties brought by parent  Include all techniques in IEP  Train and communicate with paras  Trust your instincts re fellow teachers  Better to be lucky than good

Heidemann v. Rother (8th Cir. 1996)  Student had severe cognitive disability, visual impairment and other conditions  Teacher used blanket restraint  Mother alleged teacher • Used wrapping for convenience, not education • Had wrapped student too tightly and then left for over an hour

Heidemann v. Rother (8th Cir. 1996) Held: School won  Use of restraint “not optimal” but “within range of professionally acceptable choices” because recommended by licensed therapist  Method of wrapping “did not depart grossly from acceptable standards among qualified professionals”

Waukee Comm. Sch. v. DL (S.D. Ia. 2008)  8 year old with PDD-NOS • Non-compliant with adults • Aggressive toward peers  IEP called for • Hand-over-hand • Timeouts o Compliance tasks o Sit in “body basics” for 5 minutes o Timeouts lasted 1, 2 and 3 hours • 1:1 until 5 days of no escalating

Waukee Comm. Sch. v. DL (S.D. Ia. 2008)  Parents removed to homebound  Sued claiming • Violation of LRE • Behavior interventions • Inconsistent with FBA • Not compliant with IEP • Excessive and inappropriate

Waukee Comm. Sch. v. DL (S.D. Ia. 2008) H.O.  LRE • required Isabel to perform "on par" with her peers to be included • Students may not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.

Waukee Comm. Sch. v. DL (S.D. Ia. 2008) H.O.  Behavior interventions • Both experts agreed that timeouts furthered function of avoidance • Extent of timeouts undermined IEP • Team’s focus was on punitive techniques, not “positive behavioral supports”

Lessons from Waukee  LRE • Start in regular ed classroom – don’t rely on old IEP • Move through continuum of placements • Don’t make kid “earn” gen ed  Behavior Interventions • Don’t be reasonable – LOOK IT • Use FBA data • Use homebound to buy time

CJN v. Minneapolis Pub. Sch. (8th Cir. 2003)  11 year old student with brain lesions and psych. illness • Aggressive to peers and staff • Academically on-track with peers  IEP called for • Timeouts • Restraint if aggressive o Most episodes less than 1 minute o 6 days -- 5 or more minutes o One incident police summoned

CJN v. Minneapolis Pub. Sch. (8th Cir. 2003)  Parent agreed to homebound  After 1 day, moved to private placement  Sued claiming • Violation of FAPE due to lack of positive behavioral interventions • Physical restraints

CJN v. Minneapolis Pub. Sch. (8th Cir. 2003)  Procedural history • H.O. – found for parents • Administrative appeal found for sch.

• District Court found for sch.  8th Circuit Court of Appeals • Token economy = pos. beh. supp.

• Student progressing academically • “IEP was managing … problems in a way that allowed him to learn.”

Lessons from CJN  Behavior Interventions • document positive as well as negative • School didn’t suspend every time it could have – shows good faith • “restraint may help prevent bad behavior from escalating to a level where a suspension is required”  Call the cops when appropriate  Homebound and stay-put (again)

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Facts      

Student aggressive autistic third-grader Parents had elected private placement for substantial portions of education Use of baskethold an issue Sent to Kennedy Krieger Institute for 5 months When returned, could not agree to plan Parents privately placed and sued

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

Disciplinary Removal • Not punishing bad behavior

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“Clearly behavioral problems at school were caused by and had a direct and substantial relationship to autism. …

However it is equally clear that [the student] was not disciplined for those behaviors, and that there was not a change of placement as described by [section 16 of Rule 51].”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

Disciplinary Removal • Not punishing bad behavior • No removal

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“ [The student] was not suspended from school, nor was expelled. Neither was there an in school suspension. While the amount of time spent in the general education classroom varied, and as the semester went on decreased, [the student] remained in the placement provided for by the IEP.”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues 

Disciplinary Removal • Not punishing bad behavior • No removal • Since not discipline, no requirement for manifestation

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues  

Disciplinary Removal FAPE under Rowley • Hearing officer: Best and Better aren’t relevant • Not a comparative standard

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“ In support of a placement at Prairie Hill, the Petitioners argued that Prairie Hill was a better place for [the student] behaviorally, that [the student] made better progress educationally and that [the student] was better integrated with non-handicapped students.�

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

“These arguments, however, overlook the very basic premise that the provision of a free appropriate education is not a comparative test and not based upon a standard of where a student can receive the best education.”

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues   

Disciplinary Removal FAPE under Rowley LRE • Parents argued private actually more mainstreamed with peers • H.O.: first preference is for home district, even if more mainstreamed at distant placement

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues    

Disciplinary Removal FAPE under Rowley LRE Predetermination • School refused to implement experts’ recommendations re baskethold, etc.

• H.O.: good faith in accepting some, reasonably rejecting others

M.M. v. LPS – Hearing Officer (Sept. 10, 2010)

Legal Issues     

Disciplinary Removal FAPE under Rowley LRE Predetermination Damages • Parents asked for $430,184 plus tuition • H.O.: treated like IEE

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)

 Deference to H.O. and Schools • Due weight to administrative proceeding • Will not substitute “its own notions of sound educational policy” for school’s because “courts lace the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational li ”

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)

 Burden on party seeking relief  School’s legal obligation: • Comply with IDEA procedures in developing IEP • IEP is reasonably calculated to enable child to receive educational benefit

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)

 Parents must have meaningful participation • Numerous communications and meetings • LPS revised IEP • IEP incorporated most of their expert’s plan  MDT and FBA not required • Calm-down room is behavioral treatment, not punishment

M.M. v. LPS – U.S. District Court (Nov. 16, 2011)

 IEP reasonably calculated to provide “some educational benefit” • Present levels of education • Measurable goals • Services and accommodations listed • Considered behavioral interventions and strategies  LPS provided FAPE at LRE

M.M. v. LPS – Eighth Circuit (Dec. 28, 2012)

 Rejected claim of no FAPE • IEP reasonably calculated to provide “some educational benefit” • Use of calming room approved • LPS “considered” outside evaluations, but not required to adopt recommendations • Methodology is school’s call • BIP contained detailed strategies • Use of calming room based on history with student

M.M. v. LPS – Eighth Circuit (Dec. 28, 2012)

 Procedural requirements satisfied • Received notice • Attended meetings • Gave input • “IDEA does not mandate that parental preferences guide educational decisions.”

• Refusal to adopt parental preferences does not equal predetermination

Karen’s Suggestions  Get a copy of your board’s policy NOW  Itinerate staff: get each school’s policy  Follow it EXACTLY • Training • Reporting  If it is bad: • Draft revisions • Take to administration, then board • Don’t wait  If policy and IEP conflict; follow IEP

Disabled Students & Extracurriculars

Laws in Effect • • • •

IDEA Section 504 ADA Regulations

IDEA • IEP must include ‾ Statement of services and aids ‾ Program modifications ‾ With specific reference to participation in extracurricular and nonacademic activities ‾ NOT required to be tied to FAPE

IDEA • IEP team must ‾ Consider supplementary aids, support, modifications ‾ Afford children with disabilities an equal opportunity to participate

IDEA • IEP team must ‾ “[Ensure] that each child with a disability participates with nondisabled children . . . to the maximum extent appropriate to the needs of the child.”

Section 504 • Students with disabilities shall receive “equal opportunity” to participate in nonacademic and extracurricular activities • May include: counseling, athletics, transportation, health services, clubs, and employment services

ADA • May not discriminate on the basis of disability • Must provide reasonable accommodations • Do not need to alter qualification requirements or essential functions of the activities

OCR’s "Dear Colleague" Letter (1/25/13)

 legal obligation to comply with Section 504 . . . supersedes any rule of the activities association  would violate a school district's obligations under Section 504 to belong to an organization that discriminates on the basis of disability  What about wheelchair track cases?

OCR’s "Dear Colleague" Letter (1/25/13)

 May not rely on generalizations about what students with a type of disability are capable of-one student with a certain type of disability may not be able to play a certain type of sport, but another student with the same disability may be able to play that sport

OCR’s "Dear Colleague" Letter (1/25/13)

 Because the schools have always had to include SpEd students, “providing these aids or services after school to a student with a disability not eligible under the IDEA would rarely, if ever, be a fundamental alteration of its education program.”  What about fundamental alteration cases?

OCR’s "Dear Colleague" Letter (1/25/13)

 Students who cannot participate in the existing extracurricular athletics program should still have an equal opportunity to receive the benefits of extracurricular athletics  School district should create additional opportunities for those students with disabilities

OCR’s "Dear Colleague" Letter (1/25/13)

 “In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district's other athletic activities."

Athletics

Maryville City (TN 1996)

 Baseball tryouts ‾ Student has Tourette's ‾ Coach evaluated on speed, balance, coordination, catching, hitting, etc. ‾ Two openings on team, student finished 8/14

Maryville City (TN 1996)

 Parents argued that coach knew of behavioral issues and discriminated against student  OCR ‾ Coach used clear metrics ‾ Student had “equal opportunity” ‾ No evidence of discrimination other than allegations

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 5th-grader autism & Tourette syndrome  Parents requested supplementary aids and services for student to participate in extracurricular/nonacademic activities: • adult supervision after the activity until Student could be picked up • access to cell phone during the activity • ability to miss some games/practices to manage health concerns/stress

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 Parents alleged that district refused to discuss supplementary aids/services at IEP meeting and that district offered 504 meeting instead (!)  District alleged that Parents asked for 504 meeting  Resulting 504 plan did not include requested supplementary aids/services  Parents filed a complaint

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 ED held that district violated IDEA by failing to convene an IEP meeting to discuss supplementary aids/services  App. Ct upheld ED’s decision in part, but held that IEP need only include supplementary aids/services necessary for participation in activities required for the child’s education

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 Minnesota Supreme Court reversed in part, holding that an IEP’s contents are not restricted to extracurricular/nonacademic activities required to educate a student

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 Minn. Sup. Court reasoned: “Requiring disabled students to prove an educational benefit, when nondisabled students need not, does not afford disabled students an equal opportunity to participate in extracurricular and nonacademic activities. Thus, the court of appeals’ holding violates the ‘equal opportunity’ for participation in extracurricular and nonacademic activities required by the plain language of section 300.107.”

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Student had panic attacks  Participated in swim team  Parents requested that she be allowed to leave the pool during practice and competitions

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Court: There is no reasonable accommodation that a swim team coach could make for an athlete who is suddenly and sporadically afraid of the water and thus has to exit the pool during practices and competitions

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Ability to enter and stay in the pool is an essential requirement of being a swim team member  Allowing the student to do otherwise would fundamentally alter the nature of the swim team program

McDowell Schools (WV 2010)

• Cheerleading tryouts ‾ Student had growth hormone deficiency ‾ 24 tried out for 12 spots ‾ 5 impartial judges and an extensive rubric ‾ Student scored lowest of 24

McDowell Schools (WV 2010)

• OCR found no discrimination ‾ Students must be given reasonable accommodations, but must meet performance standards ‾ Grading was tied to performance standards (i.e. essential functions)

Transportation  SpEd verification ≠ automatic transportation • IEP team decides IF kid needs transportation • BOARD shall select “efficient and effective means of transportation” at “reasonable cost”

 If transportation is in IEP, LRE and discipline rules apply

Harnesses and Other Restraints

Pasadena Unif. Sch. Dist.

(Cal. 2010)

 School used “Posey Belt” restraint on bus and elsewhere  OCR found a violation • No staff training • Belt not designed for this • No behavior expert OK’d • Keeping student on leash

Ferndale Pub. Sch. (MI 2008)

 School used harness during transportation • Student had history of disruptive behavior on bus • Harness did not restrict movement more than seatbelt

 Mom sued; fear of student trapped in accident

Ferndale Pub. Sch. (MI 2008)

 HO: not unreasonable  Danger of being trapped remote; danger of behavior without harness likely  1:1 para not necessary

Disciplinary Removals from Bus  If transportation is in IEP, a change of placement, need to do manifestation  If NOT in IEP, NOT change in placement, no MDT  BUT consider need for BIP based on behaviors